JUDGMENT

Vibhu Bakhru, J.

INTRODUCTION

1. The appellant (hereafter `Welspun') has filed the present appeal under Section 37(1)(c) of the Arbitration and Conciliation Act, 1996 (hereafter `the A&C Act') impugning an order dated 20.11.2018 (hereafter `the impugned order') passed by the learned Single Judge, whereby the appellant's application under Section 34 of the A&C Act, seeking to set aside an arbitral award dated 23.07.2018 (hereafter `the impugned award'), was rejected.

2. The impugned award was rendered by majority of 2:1 by an Arbitral Tribunal comprising of three members. Whilst the majority was of the view that the claims of Welspun, as included in the Final Bill, were barred by limitation, one of the members of the Arbitral Tribunal (minority) expressed a contrary view.

3. The learned Single Judge concurred with the view that the claims, as contained in the Final Bill, were barred by limitation for the reason that the arbitration had not commenced within a period of three years from the due date for payment of the Final Bill, as claimed.

4. The Arbitration Clause contemplated a pre-arbitration dispute resolution mechanism by referring the disputes to the Chief Executives of the parties. The dispute resolution process failed on 21.12.2012 and the notice for arbitration was issued on 27.01.2014. According to Welspun, the right to seek reference to arbitration would arise on failure of the amicable dispute resolution procedure and thus, invocation of the arbitration was within the period of limitation. However, the learned Single Judge rejected the said contention, inter alia, on the ground that Welspun had failed to explain the delay in invoking the arbitration after the dispute resolution process had failed on 21.12.2012.

5. The principal controversy to be addressed in the present appeal is whether the claims of Welspun, as included in the Final Bill dated 30.10.2010, were barred by limitation.

FACTUAL CONTEXT

6. An Engineering, Procurement and Construction (EPC) contract in respect of "Balance Offsite & Utilities and Interconnection with Panipat Refinery/Marketing Terminal (EPCC-9 Package)" in the Panipat Naphtha Cracker Project was executed between Indian Oil Corporation Limited (hereafter `IOCL') and Nafto Gaz India Private Limited (hereafter `Nafto Gaz'). The scope of work under the said EPCC-9 Package included "Design, Engineering, Procurement, Supply Transport, Fabrication, Construction, Painting, Insulation, Testing and Commissioning of Raw Water Storage and Treatment Plant, Fire water Storage & Pump House, Storm Water Storage & Pump House, Flare System, interconnecting Process Streams between Refinery and Panipath Naphtha Cracker Project (PNCP) including hook ups with the existing system, Naphtha unloading and transfer from Panipat Marketing Terminal to PNCP and construction of inter-connecting flyover between Panipat Refinery and PNCP".

7. Subsequently, Nafto Gaz awarded the said EPC contract in favour of the respondent (hereafter `NCC'). Thereafter, NCC sub-contracted the work in respect of the inter-connecting flyover between the existing Panipat Refinery and Panipat Naphtha Cracker Project (PNCP) to Welspun.

8. By a Letter of Intent dated 24.10.2006 (hereafter `the LoI'), NCC subcontracted the works in respect of the interconnecting flyover between Panipat Refinery and PNCP to MSK Projects (India) Ltd. (hereafter `MSK').

9. On 19.12.2006, a Memorandum of Agreement (hereafter `the MoA') was executed between MSK and NCC. In terms of the said MoA, NCC had subcontracted the work concerning a flyover project (hereafter `the Project') on an item rate basis for a total value of Rs.53.25 crores, in favour of MSK.

10. Subsequently, MSK was acquired by Welspun.

11. On 12.06.2010, the Mechanical Completion Certificate was issued to Welspun by IOCL.

12. Thereafter, on 03.08.2010, a meeting was held between the parties, wherein NCC had agreed to pay various amounts due to Welspun.

13. Thereafter, on 30.10.201